Johnson v. United States, CV-77-20-GF.

CourtUnited States District Courts. 9th Circuit. United States District Court (Montana)
Citation510 F. Supp. 1039
Docket NumberNo. CV-77-20-GF.,CV-77-20-GF.
PartiesFreddie L. JOHNSON and Clara Johnson, husband and wife, Plaintiffs, v. UNITED STATES of America, Defendant and Third Party Plaintiff, v. Timothy B. HAY, Third Party Defendant.
Decision Date06 April 1981

COPYRIGHT MATERIAL OMITTED

Tom L. Lewis, Regnier & Lewis, Ralph T. Randono, Randono & Donovan, Great Falls, Mont., for plaintiffs.

Robert T. O'Leary, U. S. Atty., District of Montana, Butte, Mont., for defendant.

FINDINGS OF FACT AND CONCLUSIONS OF LAW

HATFIELD, District Judge.

This action was bifurcated for trial on the issues of liability and damages. The trial on the issue of liability was tried before the court sitting without a jury from December 11 to December 17, 1979. Findings of fact and conclusions of law on the issue liability were entered by the court on August 1, 1980, by which the court determined that Freddie L. Johnson was entitled to recover damages against defendant United States of America in a subsequent trial on the bifurcated issue of damages, diminished by 25% for comparative negligence attributable to the plaintiff.

The trial on the bifurcated issue of damages was tried to the court sitting without a jury. Trial commenced on December 9, 1980 and concluded on December 12, 1980. The parties introduced oral and documentary evidence. At the close of the evidence the parties rested, and the cause was submitted to the court. The parties thereafter filed briefs on all issues. The court enters the following findings of fact and conclusions of law, pursuant to Rule 52(a), F.R. Civ.P., on the issue of damages to be awarded plaintiff, Freddie L. Johnson.

FINDINGS OF FACT

1. As a direct and proximate result of the negligence of the defendant, Freddie L. Johnson was severely injured in an automobile collision that occurred on December 13, 1975. Johnson suffered a severe spinal cord injury which has resulted in his becoming a quadraplegic, paralyzed from the level of the sixth cervical vertebra down. He has been rendered totally and permanently disabled. (Findings of Fact, August 1, 1980; agreed facts from pretrial order for the trial on the bifurcated issue of damages.)

2. Gaston Syrenne, M.D., one of Johnson's treating physicians was the only medical doctor to testify on behalf of either party. Dr. Syrenne is a neurosurgeon, Board Certified as a Diplomat of the American Board of Neurological Surgery. Dr. Syrenne testified that he examined Freddie Johnson on December 10, 1979, approximately four years after his injury. Dr. Syrenne testified that at the time of his December 10, 1979 examination Freddie Johnson was "Literally ... paralyzed in the four limbs." Freddie Johnson had reached maximum healing two years after his injury and would remain paralyzed throughout the remainder of his life.

3. Freddie Johnson has bladder paralysis and must be provided with an external urinary collecting system. Johnson has no control over sphincter of the rectum and bladder, which requires manual or digital disinpaction of his bowels every other day. This is currently being provided by his wife, Clara Johnson.

4. Freddie Johnson suffers from frequent muscle spasms in his chest, stomach, and lower extremities.

5. Freddie Johnson, like all quadraplegics, has two major health problems, urinary or bladder infections and pressure sores with skin breakdown and ulceration.

6. Freddie Johnson also suffers from speech and breathing problems because of paralysis of his chest muscles. He breathes and speaks by use of his diaphragm only. He is more susceptible to lung disease than a normal person and requires special care for this condition.

7. Dr. Syrenne testified that he reviewed a report prepared by Fay Iennaco, R.N., which included a nursing evaluation for Freddie Johnson. Dr. Syrenne found the report to be quite thorough and agreed with the conclusions and recommendations contained in the report. Dr. Syrenne agreed that Freddie Johnson requires 24-hour nursing care, including a licensed practical nurse for eight hours per day and home health aide personnel for the remaining sixteen hours per day. Dr. Syrenne testified that it was unreasonable to expect Johnson's wife, Clara, to continue to provide 24-hour nursing care for the remainder of his life, because Johnson required professional medical care and constant attention including a requirement that he be turned over every two hours for the remainder of his life. Dr. Syrenne testified that in his opinion providing 24-hour nursing care in the Johnson home would be the best arrangement. Placing Freddie Johnson in an institution would have the deleterious effect of destroying the Johnson family. Less than 24-hour nursing care would not meet Freddie Johnson's reasonable medical needs.

8. Fay Iennaco, R.N., testified as to the nursing and health needs of Freddie Johnson. Mrs. Iennaco is a registered nurse certified in critical care nursing by the American Association of Critical Care Nurses. She is presently employed by A Visiting Redi-Nurse, Inc., of West Palm Beach, Florida as a home health aide supervisor and home health coordinator. She has been a licensed registered nurse since 1953 and has extensive experience in intensive care, critical care, and home health nursing. She is familiar with the availability of home health nursing in the geographical area in which plaintiff Freddie L. Johnson resides, namely Riviera Beach, Florida, and the area surrounding Palm Beach, Florida.

9. Mrs. Iennaco visited the home of Freddie Johnson and completed a total evaluation and assessment of his and his family's needs with respect to home health care nursing.

10. Mrs. Iennaco testified that Freddie Johnson is a quadraplegic 27 year old father of two young children. He, his wife and two children live in a well-maintained home. The home is extremely small with architectural barriers throughout the house, making it difficult for the free and safe use of a wheelchair. Johnson has minimal assistive devices for adequate daily living. He has no formal therapy program at the present time and no provisions are made for a vocational program.

11. From the date Freddie Johnson was discharged from the hospital and permitted to go home until the present time, total responsibility and care has been provided by Clara Johnson. Mrs. Johnson has transferred, positioned and provided health procedure daily throughout the 24-hour period with interrupted sleep nightly. She has been required to wake up every two hours to turn Freddie Johnson over, so that he does not experience skin breakdown and pressure sores. She has accepted total responsibility for the care of the home, preparation of meals, care, discipline of the children and household finances.

12. It is apparent that Clara Johnson cannot continue her present routine for much longer without jeopardizing Freddie Johnson's health, her health, and the family structure and Johnson marriage.

13. Freddie Johnson needs total medical care provided by nurses, home health aides and physical therapists under close supervision by qualified physicians.

14. Freddie Johnson requires 24-hour nursing care, including a licensed practical nurse eight hours per day to care for his special needs (administration of medication, exercise, transport technique, digital removal of stool, insertion of suppositories, external catheter care, observation of adequate urine output, observation of possible urinary tract infection, proper diet and fluid regimen, assisting in possible emergencies that may arise, and lung assessments). Johnson also needs a home health aide (in addition to the LPN), to assist Johnson with personal care and allow Clara Johnson to care for her children, do personal shopping, grocery shopping, and other family needs.

15. The reasonable cost of the nursing services found by the court is $40,549.60. These figures were provided by Fay Iennaco, based upon a rate survey done by her employer, A Visiting Redi-Nurse, Inc., and based upon Mrs. Iennaco's experience. The court finds that 12 hours of attendance care per 24-hours is adequate to allow Clara Johnson relief.

16. Clara Johnson has inquired as to the cost of obtaining suitable housing with the necessary accommodations for a quadraplegic in the geographical area where the Johnsons presently reside, and testified that the cost of such a home would be $150,000.

17. The Johnson family is presently receiving Veteran's Administration benefits in the amount of $2,665.00 per month. Of this total $1,768.00 per month is paid to Freddie Johnson directly as a disability pension and $138.00 per month is paid to his wife and children. The remaining $759.00 per month is paid as an aide and attendant's allowance.

18. Both the plaintiff and the defendant called economists to testify during the trial on the bifurcated issue of damages. The plaintiff called Peter Formuzis, Ph.D., and the defendant called Mr. Harry Gaghen, who holds a master's degree in the field of economics. Both economists used a normal life expectancy in making their projections as to economic losses that have been occasioned by the injuries to Freddie Johnson. The defendant's economist testified that Freddie Johnson's life expectancy as of the date of his injury, had he not been injured in the subject accident, was 44.59 years, and his work life expectancy at that time was 38.79 years. The life expectancy testified to by the economists as of the date of trial was 40.9 years and the work life expectancy was 34.9 years.

19. Immediately prior to his injury Freddie Johnson planned to separate from the United States Air Force and enter butcher school in Toledo, Ohio. Had he separated from the service as planned, entered butcher school and entered that trade, he would have been reasonably expected to earn $56,024 as of the date of trial. The present cash value of the earnings he would have reasonably been expected to earn as a butcher throughout...

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